Tuesday, April 28, 2009

The next step in "criminal law through the back door"

This blog has given much attention to the use and abuse of "human rights" commissions and tribunals in Canada. These have revealed themselves to be involved in pointing fingers of blame, and levying fines and various orders on supposed "human rights" wrongdoers, while avoiding some of the costly and careful procedures and protections we have come to expect for those charged under the criminal law. The idea of making justice cheaper and easier for putative victims has led to various scandals of cheapened justice, as recounted in books like Shakedown and The Tyranny of Nice.

A similar development is occurring with the passage of various provincial laws that allow government to confiscate property that it alleges to be proceeds of, or associated with, crime. This forfeiture of property can be achieved without need of a conviction in the criminal courts. These laws allow government to pursue property through civil trials where the tests proving wrongdoing that it has to meet are less demanding than in criminal court (where guilt must be proved "beyond a reasonable doubt") and where defendants cannot hope to be given legal aid.

The Supreme Court of Canada has recently upheld the Ontario Civil Remedies Act (BC has a similar law - the Civil Forfeiture Act) on a constitutional challenge contesting the province's jurisdiction in what the defendant argued to be an area of federal or national responsibility, i.e. the criminal law

The criminal defence bar is condemning a Supreme Court of Canada decision backing Ontario’s Civil Remedies Act, saying the province now has an easier route to punishing alleged offences after failed criminal proceedings.

Toronto criminal defence lawyer Leora Shemesh calls the CRA a form of “double punishment” for accused.

“You go to court, the Crown knows full well that the charges are terrible and they can’t make out their case because the search was horrible, so they withdraw the charge, and then they bring a Civil Remedies Act application to keep the money that they found on the accused,” says Shemesh, who adds that she has at least two clients facing the prospect of losing their homes due to CRA applications.[...]The decision arises from Chatterjee v. Ontario. Robin Chatterjee was arrested in March 2003 for breach of probation, according to the decision.

Police searched his car during the arrest and found $29,020 in cash, an exhaust fan, light ballast, and light socket. Police said the items smelled of marijuana, but no drugs were found.Chatterjee was never charged with any crimes related to the money, items, or any activity related to drugs.

The Attorney General of Ontario on May 13, 2003, was granted an order under the CRA to keep the seized money and equipment, and on May 16, 2003, applied under sections of the act for forfeiture of the money as proceeds of unlawful activity and the items as instruments of unlawful activity.

Chatterjee responded by arguing that the CRA is unconstitutional, saying it impinges on the federal criminal law power. The top court disagreed.

“The argument that the CRA is ultra vires is based in this case on an exaggerated view of the immunity of federal jurisdiction in relation to matters that may, in another aspect, be the subject of provincial legislation,” the court stated.[...]“It is true that forfeiture may have de facto punitive effects in some cases, but its dominant purpose is to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public institutions for the costs of past crime,” the court wrote.

“These are valid provincial objects. There is no operational conflict between the forfeiture provisions of the Criminal Code . . . and the CRA. It cannot reasonably be said that the CRA amounts to colourable criminal legislation.”[...]“The instruments of crime section in the bill deals with a situation where someone may be the owner of a property where some drug transaction is going on, for example, and if the home were seized, that would be punishment, as opposed to seizing the drugs or the proceeds from them,” says Macklin.

“There’s an interesting issue left on proceeds, I suppose, where if the taking of a house that you own free and clear, because a drug transaction went on in there, then you’re being punished. And that seemed to be left open by the court.”

Blake Cassels & Graydon LLP senior associate Allison Thornton, who represented the intervener Canadian Civil Liberties Association in the case, calls the CRA “criminal law through the back door.”

Thornton says the Supreme Court “took a very broad view of property law, and basically from our perspective let the form of the law prevail over its substance.”

She says the decision is precedent setting in terms of courts’ interpretation of provincial jurisdiction “in suggesting that the provinces do have a very broad general ability to make law that has the objective of deterring and punishing crime.”

She adds, “Notwithstanding that, from our perspective, that is the heart and soul of what criminal law is and should be done at the other level of government, where individuals would have the protections they have in a criminal proceeding.”

Toronto criminal defence lawyer Peter Zaduk suggests the decision will further clog the province’s overburdened courts. He says the average case involving an alleged grow house lasts about seven days.

“There’s lots of people that might make a deal and plead guilty, who won’t do that now because they stand to lose their houses if they’re convicted,” says Zaduk. “So you’re going to have a big backlog in the courts.”

Canada has no constitutional guarantee of property rights, and, I have been informed, our courts have historically been reticent to interpret our Charter right to "life, liberty and security of the person" as conveying a right to protect property from government seizure or expropriation in various situations.

Some will see these civil forfeiture laws as targeting criminals and thus not being of general concern. But I fear this is indicative of an unhealthy reliance in our culture on the arts of holding up somewhat arbitrarily-chosen scapegoats to assuage people's resentments with the evils of our world. The problem is that those who are accused of being criminals can now be found "guilty" much more easily (or they can be punished twice by different courts), just as those who are accused of being "human rights" wrongdoers can now be exposed, without the full protection of the criminal law, to potentially lengthy, expensive "civil" procedures that result in fines and orders to change their behaviours, including those that involve a person's free expression of ideas deemed discriminatory.

Are these signs of a culture that is losing its regard for equal and fair treatment under a law applied universally?